Texas has filed what promises to be the last filing in the volley of Texas v. United States. Noteworthy is that Texas (for whom I filed an amicus brief) wrote that the United States sandbagged them by filing numerous declarations after the hearing.
The new declarations accompanying Defendants’ sur-reply do not create any material factual dispute, for all of the reasons explained here and previously. Indeed, given that Defendants had over a week to review each and every one of Plaintiffs’ factual assertions before the hearing, and given that Defendants participated in the hearing without objection, they cannot later manufacture a fact dispute by offering new, post-hearing declarations. That is sandbagging.
I tend to agree about the timing, though these declarations are important to show that there is not in fact the type of case-by-case discretion claimed by OLC. More on that later.